Opinion
December 30, 1910.
L.S. Phillips and Arthur R. Wilcox, for the relator.
De Witt H. Lyon, for the respondents.
The relator has been the supervisor of the town of Rye for several years. In 1907 (Chap. 711) a statute was enacted having for its purpose the acquisition of lands therein designated for a town park by the town of Rye, and to provide for the payment of the expenses connected therewith. It created a board of park commissioners to be composed of the supervisor of the town of Rye, the presidents of the villages of Rye and Port Chester and two other persons, one to be appointed by the town board of the town of Rye and one to be appointed by the board of trustees of the village of Rye, it being provided that such commissioners shall receive no compensation. The supervisor of the town of Rye is made treasurer of the board. To provide the means for acquiring the money necessary for such improvement, the "supervisor of the town of Rye" was authorized and directed to borrow, on the faith and credit of said town, an amount of money not exceeding two and one-half per centum of the total assessed valuation of the real and personal property in said town appearing upon the assessment roll of the preceding year, and for that purpose to issue and sell the bonds of said town, signed by himself as supervisor and countersigned by the town clerk, the proceeds of which sale are directed to be paid to "the supervisor of said town" and paid out from time to time to the persons entitled thereto upon vouchers certified by a majority of the park commissioners. It is provided that the principal and interest of such bonds "shall be a charge upon the taxable property in the town of Rye." The proposition to acquire the specified land was adopted by the electors of said town at the general election held in November, 1907; bonds of the town were issued and sold by the relator, as supervisor, amounting to $440,000. He received the proceeds of such sale amounting to $442,541.48, and later disbursed $402,130.08, and at the end of his term of office, November 8, 1909, paid the balance, $40,411.40, to his successor in office. On November 15, 1909, the relator presented to the respondents for audit a claim against the town of Rye for the sum of $5,408.62, being commissions at the rate of one per centum on all town money paid out by him as supervisor during the year 1909, prior to the date of said claim, the total amount of which was $540,862.10, of which $402,130.08 was money received from the sale of said bonds and paid out for park purposes, and $138,732.02, other town moneys disbursed in the payment of other town charges. The relator claims to be entitled to the commissions under the provisions of subdivision 3 of section 85 of the Town Law (Consol. Laws, chap. 62 [Laws of 1909, chap. 63], as amd. by Laws of 1909, chap. 491). On or about December 18, 1909, the respondents allowed said claim to the extent of $1,387.82, and disallowed and rejected it as to $4,201.30, which represented the commissions claimed by the relator for paying out money of the town as its supervisor, under the provisions of the park act. The contention of the respondents is that because of the provisions in the statute that "said commissioners shall receive no compensation," the relator being a commissioner is not entitled to commissions.
I think that this contention is unsound. At the time the park act was enacted, the Town Law (Gen. Laws, chap. 20 [Laws of 1890, chap. 569], § 178, subd. 3, added by Laws of 1904, chap. 546, and amd. by Laws of 1905, chap. 642) provided that the supervisor of a town should be paid a fee of one per centum on "all moneys paid out by him as such supervisor," including money paid out for specified purposes, "and all other town moneys paid out by him for defraying town charges, except moneys expended under chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, entitled 'An act to provide for the improvement of the public highways,' and the acts amendatory thereof," etc. In 1909 these provisions were re-enacted with slight change of phraseology in section 85 of the present Town Law. The section makes this commission full compensation for all services rendered by the supervisor in respect to money received and paid out by him as such supervisor, and its provisions clearly indicate that this fee is in addition to his per diem compensation. (See, also, Town Law [Gen. Laws, chap. 20; Laws of 1890, chap. 569], § 178, as amd. by Laws of 1904, chaps. 124, 312, 546, and Laws of 1905, chap. 642.) By the act in question the Legislature provided for placing in his hands as supervisor moneys of the town of Rye, and required its disbursement by him. There is no question but that the money was town money; that it was received by him as supervisor and paid out by him as such in defraying town charges. For the numerous services performed as a park commissioner the relator makes no claim. It was as supervisor that he received and paid out the money realized on the sale of the bonds. Neither the commissioners nor the relator as such could issue or sell the bonds. They were vested with no power to raise the money required for the improvement, and the services of the relator in the performance of these acts were rendered as supervisor of the town, and were separate and apart from the services he rendered as park commissioner. The Legislature must have intended that the supervisor of the town of Rye should receive and disburse the money, otherwise they would have directed that the avails of the bonds be paid to the treasurer of the park commission and disbursed by him, or provided that the services rendered by the supervisor pursuant to the requirements of the act should be without compensation.
The respondents further contend that the relator's claim is within the inhibition of section 28 of article 3 of the Constitution and section 67 of the Public Officers Law (Consol. Laws, chap. 47; Laws of 1909, chap. 51), which, so far as applicable, was formerly section 3280 of the Code of Civil Procedure, in that he is seeking "extra compensation." This contention is without merit. No such claim is made by the relator. He asks only for the compensation expressly given him by the Town Law. It is also suggested that section 18 of article 3 of the Constitution providing that the Legislature shall not pass a private or local bill "creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed," presents a constitutional objection to the allowance of the relator's claim. The trouble with this contention is that relator's claim is based upon the provisions of the Town Law in force when the park act was passed, and long prior to his election as supervisor for the term during which he rendered the services for which he seeks compensation. While the park act provides for the raising of money for park purposes, and charges the relator with its custody and disbursement, it is the Town Law which provides for his compensation. The park act contains no provision creating, increasing or decreasing fees, percentages or allowances of the supervisor, and presents no constitutional objection to the allowance of the relator's claim. We have given due consideration to the other questions presented by the learned counsel for the respondents, but we are not convinced that the disallowance of the relator's claim can be sustained.
The determination of the respondents rejecting that portion of the relator's claim for commissions amounting to $4,021.30 is reversed, with fifty dollars costs and disbursements, and the claim is remitted to the board of town auditors of the town of Rye, with instructions to convene in special session and audit and to allow the same.
HIRSCHBERG, P.J., WOODWARD, JENKS and THOMAS, JJ., concurred.
Determination of the respondents rejecting that portion of relator's claim for commissions amounting to $4,021.30 reversed, with fifty dollars costs and disbursements, and claim remitted to the board of town auditors of the town of Rye, with instructions to convene in special session to audit and to allow the same.